Amicus Curiae Brief — R.G. & G.R. Harris Funeral Homes, Inc., Petitioner v. Equal Employment Opportunity Commission, et al.

d

Nos. 17-1618, 17-1623, 18-107 VIDED

IN THE

Supreme Court of the United States

No. 17-1618

GERALD LYNN BOSTOCK,

—v.—

Petitioner,

CLAYTON COUNTY, GEORGIA,

Respondent.

(Captions continued on inside cover)

ON WRITS OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE ELEVENTH, SECOND AND SIXTH CIRCUITS

BRIEF OF AMICI CURIAE NATIONAL

LGBT BAR ASSOCIATION, NATIONAL TRANS BAR

ASSOCIATION, LGBT BAR ASSOCIATION OF NEW YORK,

BAY AREA LAWYERS FOR INDIVIDUAL FREEDOM,

AND LGBT BAR ASSOCIATION OF LOS ANGELES

IN SUPPORT OF EMPLOYEES

SANFORD JAY ROSEN

Counsel of Record

MICHAEL S. NUNEZ

ROSEN BIEN GALVAN

& GRUNFELD LLP

101 Mission Street, Sixth Floor

San Francisco, California 94105

(415) 433-6830

srosen@rbgg.com

Counsel for Amici Curiae

NO. 17-1623

ALTITUDE EXPRESS, INC., and RAY MAYNARD,

—v.—

Petitioners,

MELISSA ZARDA and WILLIAM MOORE, JR.,

Co-Independent Executors of the Estate of Donald Zarda,

Respondents.

NO. 18-107

R.G. & G.R. HARRIS FUNERAL HOMES, INC.,

—v.—

Petitioner,

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

and AIMEE STEPHENS,

Respondents.

i

TABLE OF CONTENTS

Page

INTEREST OF AMICI ................................................1

SUMMARY OF ARGUMENT.....................................2

ARGUMENT ...............................................................3

I.

II.

[3405617.1]

THIS COURT SHOULD REJECT THE

DISCREDITED IDEA THAT

EMPLOYERS MAY DISCRIMINATE

IN EMPLOYMENT DECISIONS TO

APPEASE CUSTOMER PREJUDICE. ...........3

A.

Defendants Have Repeatedly and

Unsuccessfully Asserted Inappropriate Customer-Bias Defenses

to Sex Discrimination Claims

Under Title VII. .....................................4

B.

Customer-Preference Defenses to

Other Types of Employment

Discrimination Claims Also Are

Consistently Rejected. ...........................7

C.

Evidence of Acquiescence to

Customer Biases Has Been

Recognized as Proof of

Intentional Discrimination

Under Comparable Civil Rights

Statutes. .................................................8

DISCRIMINATION TO APPEASE

CUSTOMER PREJUDICE IS

HARMFUL AND SERVES NO

LEGITIMATE PURPOSE. .............................10

ii

III.

A.

Allowing Employers to Accede to

Customers’ Discriminatory

Preferences Is

Counterproductive. ..............................10

B.

Allowing Employers to Accede to

Customers’ Discriminatory

Preferences Would Marginalize

Title VII’s Prohibition of Sex

Discrimination and Perpetuate

Stereotypes...........................................13

C.

Customer-Bias-Based

Discrimination Harms Everyone,

Not Just Employees and Job

Applicants Who Face

Discrimination. ....................................15

THIS COURT HAS LONG

DISFAVORED THIRD-PARTY VETOES

OF CIVIL RIGHTS AND CIVIL

LIBERTIES. ...................................................16

CONCLUSION ..........................................................19

APPENDIX ................................................................20

[3405617.1]

iii

TABLE OF AUTHORITIES

Page

CASES

Albemarle Paper Co. v. Moody,

422 U.S. 405 (1975) ......................................... 4

Arizona Governing Committee for Tax

Deferred Annuity and Deferred

Compensation Plans v. Norris,

463 U.S. 1073 (1983) ....................................... 3

Bollenbach v. Monroe-Westbury Central

School District,

659 F. Supp. 1450 (S.D.N.Y. 1987) ................. 7

Bradley v. Pizzaco of Nebraska, Inc.,

7 F.3d 795 (8th Cir. 1993) ............................... 7

Brown v. State of Louisiana,

383 U.S. 131 (1966) ....................................... 17

Buchanan v. Warley,

245 U.S. 60 (1917) ......................................... 17

Cantwell v. State of Connecticut,

310 U.S. 296 (1940) ....................................... 17

Chalk v. U.S. Dist. Court Cent. Dist. of

California,

840 F.2d 701 (9th Cir. 1988) ............... 7, 14, 15

Chaney v. Plainfield Healthcare Center,

612 F.3d 908 (7th Cir. 2010) ......................... 15

Coates v. City of Cincinnati,

402 U.S. 611 (1971) ....................................... 17

[3405617.1]

iv

Diaz v. Pan American World Airways, Inc.,

442 F.2d 385 (5th Cir. 1971) ....................... 5, 6

Doe v. Columbia University,

831 F.3d 46 (2d Cir. 2016) ......................... 9, 10

E.E.O.C. v. HI 40 Corp., Inc.,

953 F. Supp. 301 (W.D. Mo. 1996) ............ 6, 13

E.E.O.C. v. R.G. &. G.R. Harris Funeral

Homes, Inc.,

884 F.3d 560 (6th Cir. 2018) ..................... 3, 14

Edwards v. South Carolina,

372 U.S. 229 (1963) ....................................... 17

Faragher v. City of Boca Raton,

524 U.S. 775 (1998) ....................................... 18

Fernandez v. Wynn Oil Co.,

653 F.2d 1273 (9th Cir. 1981) ......................... 6

Ferrill v. Parker Group, Inc.,

168 F.3d 468 (11th Cir. 1999) ....................... 14

Forsyth County, Georgia v. Nationalist

Movement,

505 U.S. 123 (1992) ....................................... 17

Gerdom v. Cont’l Airlines, Inc.,

692 F.2d 602 (9th Cir. 1982) ........................... 6

Goodman v. Lukens Steel Co.,

482 U.S. 656 (1987) ......................................... 4

Hague v. C.I.O.,

101 F.2d 774 (3d Cir.), aff’d as modified,

307 U.S. 496 (1939) ................................. 16, 17

Knight v. Nassau County Civil Serv. Comm’n,

649 F.2d 157 (2d Cir. 1981) ........................... 14

[3405617.1]

v

Lawrence v. Texas,

539 U.S. 558 (2003) ....................................... 18

Mass v. McClenahan,

893 F. Supp. 225 (S.D.N.Y. 1995) ................... 8

MHANY Mgmt., Inc. v. County of Nassau,

819 F.3d 581 (2d Cir. 2016) ............................. 9

Morris v. Bianchini,

No. 86–0742–A, 1987 WL 11822 (E.D.

Va. Feb. 24, 1987) .............................. 13, 15, 16

Muhammad v. New York City Transit Auth.,

52 F. Supp. 3d 468 (E.D.N.Y. 2014) ................ 7

Olsen v. Marriott Int’l, Inc.,

75 F. Supp. 2d 1052 (D. Ariz. 1999) ................ 6

Reno v. Am. Civil Liberties Union,

521 U.S. 844 (1997) ....................................... 17

Romer v. Evans,

517 U.S. 620 (1996) ....................................... 18

Silver v. North Shore University Hospital,

490 F. Supp. 2d 354 (S.D.N.Y. 2007) .............. 7

Sparenberg v. Eagle Alliance,

No. JFM–14–1667, 2015 WL 6122809

(D. Md. Oct. 15, 2015) ..................................... 8

Sprogis v. United Airlines, Inc.,

444 F.2d 1194 (7th Cir. 1971) ................... 6, 11

Watson v. City of Memphis,

373 U.S. 526 (1963) ....................................... 18

Wilson v Southwest Airlines Co.,

517 F. Supp. 292 (N.D. Tex. 1981) ............ 6, 11

[3405617.1]

vi

Wright v. State of Georgia,

373 U.S. 284 (1963) ....................................... 17

Zarda v. Altitude Express, Inc.,

883 F.3d 100 (2d Cir. 2018) ............................. 3

Zivotovsky ex rel. Zivotovsky v. Kerry,

135 S. Ct. 2076 (2015) ................................... 17

STATUTES

20 U.S.C. § 1681(a)..................................................... 9

42 U.S.C. § 1981 ......................................................... 8

42 U.S.C. § 2000e-2 .................................................... 4

42 U.S.C. § 3601 ......................................................... 8

REGULATIONS

29 C.F.R. § 1604.2(a)(1)(iii) ........................................ 5

OTHER AUTHORITIES

110 Cong. Rec. 13825-26 (1964)........................... 4, 17

Andrew R. Flores and Scott Barclay,

Backlash, Consensus, Legitimacy, or

Polarization: The Effect of Same-Sex

Marriage Policy on Mass Attitudes, 69

POL. RES. Q. 43 (March 2016) ........................ 12

Gavin Wright, SHARING THE PRIZE:

THE ECONOMICS OF THE CIVIL RIGHTS

REVOLUTION IN THE AMERICAN SOUTH

(2013) ............................................................. 10

[3405617.1]

vii

HUMAN RIGHTS CAMPAIGN,

CORPORATE EQUALITY INDEX (2019),

https://assets2.hrc.org/files/assets

/resources/CEI-2019FullReport.pdf?_ga=2.166794302.1835

252856.1560803408176337270.156080

3408................................................................ 12

Joint Statement of the Department of Housing

and Urban Development and the

Department of Justice, State and Local

Land Use Laws and Practices and the

Application of the Fair Housing Act

(Nov. 10, 2016),

http://www.justice.gov/crt/page/file/9099

56/download ................................................. 8, 9

Kathleen Hale, Toyota v. Williams: Further

Constricting the Circle of Difference, 4 J.

L. SOCIETY 275 (Winter 2003) ....................... 12

Pew Research Center, Attitudes

on Same-Sex Marriage (May 14, 2019),

https://www.pew

forum.org/fact-sheet/changingattitudes-on-gay-ma

rriage/ ............................................................ 12

Southwest Airlines Reports Fourth Quarter

And Annual Profit; 46th Consecutive

Year Of Profitability, Press Release

(Jan. 24, 2019), http://investors.south

west.com/news-and-events/newsreleases/2019/01-2

4-2019-113106440......................................... 11

Steven A. Ramirez, Diversity and the

Boardroom, 6 STAN. J. L. BUS. & FIN. 85

(Fall 2000) ...................................................... 12

[3405617.1]

viii

United Continental Holdings on the Forbes

Global 2000 List,

https://www.forbes.com/companies/unit

ed-continental-holdings/#5520a823479a

(last visited June 28, 2019) ........................... 11

[3405617.1]

1

INTEREST OF AMICI 1

Amici National LGBT Bar Association,

National Trans Bar Association, LGBT Bar Association of Greater New York, Bay Area Lawyers for

Individual Freedom, and LGBT Bar Association of

Los Angeles have thousands of members who are

LGBT attorneys and other legal professionals. The

Court’s decision in these cases will directly affect

Amici’s members and their clients throughout the

United States. Amici and their members have a

strong interest in ensuring that Title VII’s antidiscrimination mandate prohibits all forms of sexbased discrimination, including discrimination on the

basis of sexual orientation and transgender status,

both as members of the LGBT community and as

counsel who represent members of the LGBT

community.

Amici have experience and expertise directly

bearing on the issues before the Court. They and

their members are on the front lines enforcing Title

VII and other federal and state employment antidiscrimination laws. They frequently encounter

employer discrimination against LGBT employees

motivated by a desire to appease, or hide behind,

customer and client animus. In their experience,

shielding employers from liability for such discrimination would undermine the purpose of Title VII.

1 No counsel for a party authored this brief in whole or in part,

and no counsel or party made a monetary contribution to the

preparation or submission of this brief. All parties have

consented in writing to the filing of this brief.

[3405617.1]

2

Amici urge this Court to confirm that Title VII

protects LGBT employees from discrimination on the

basis of sex, and to reaffirm the well-established

principle that deference to customer bias is no excuse

for employment discrimination.

The statements of the five Amici are set forth

in the Appendix to this Brief.

SUMMARY OF ARGUMENT

Congress enacted the Civil Rights Act of 1964

to eradicate invidious discrimination throughout the

American economy and society. Consistent with that

goal, Title VII was intended to remake the American

labor market and workplace into spheres of equal

opportunity, where qualifications and performance

prevail over identity.

Excluding gay, lesbian,

bisexual, and transgender (“LGBT”) employees from

Title VII’s prohibition of discrimination on the basis

of sex would undermine the Act’s overarching purpose

of ensuring equal opportunity in the workplace.

In these cases, three employers subject to Title

VII hope to carve out discrimination against LGBT

employees from the law’s protections. They seek to

pare back Title VII’s scope and secure the unfettered

right to discriminate against LGBT employees. Their

efforts, if successful, would place millions of American

workers at economic risk, would harm the American

economy, and would advance no legitimate business

interest.

Both Donald Zarda and Aimee Stephens were

terminated from their employment because their

[3405617.1]

3

employers—Altitude Express and R.G. & G.R. Harris

Funeral Homes (“Funeral Homes”)—chose to adopt

the real or perceived anti-LGBT prejudices shared by

some of their customers. See Zarda v. Altitude

Express, Inc., 883 F.3d 100, 108-09 (2d Cir. 2018);

E.E.O.C. v. R.G. &. G.R. Harris Funeral Homes, Inc.,

884 F.3d 560, 586-87 (6th Cir. 2018). The fact that

some customers may have approved of the

discrimination at issue in these cases does not excuse

it.

For decades, this Court and others have

rejected employers’ attempts to justify their discriminatory actions as permissible responses to the

alleged biases of their customers. Here, Amici

marshal examples of courts rejecting such defenses to

claims under Title VII, as well as to claims brought

under other Federal statutes and the U.S.

Constitution. Amici also identify the harms that

would result if such defenses are validated.

ARGUMENT

I.

THIS COURT SHOULD REJECT THE

DISCREDITED IDEA THAT EMPLOYERS

MAY DISCRIMINATE IN EMPLOYMENT

DECISIONS TO APPEASE CUSTOMER

PREJUDICE.

The discrimination effected by the employers in

Zarda and Funeral Homes–discriminating to appease

customer prejudices–is of a type that this Court has

rejected for decades.

See Arizona Governing

Committee for Tax Deferred Annuity and Deferred

Compensation Plans v. Norris, 463 U.S. 1073, 1090-

[3405617.1]

4

91 (1983) (employers violate Title VII when they

discriminate against protected employees “regardless

of whether third parties are also involved”); Goodman

v. Lukens Steel Co., 482 U.S. 656, 667-69 (1987)

(union liable for declining to pursue black members’

discrimination claims due to perceived third-party

hostility to such claims).

For good reason, courts have overwhelmingly

rejected these defenses.

Discriminating against

employees to satisfy actual or perceived customer

prejudices undermines the protections afforded by

anti-discrimination laws and defeats their purpose of

fully and effectively utilizing the nation’s labor force.

A.

Defendants Have Repeatedly and

Unsuccessfully Asserted Inappropriate

Customer-Bias Defenses to Sex

Discrimination Claims Under Title

VII.

It is hornbook law that Title VII bars

employment discrimination on the basis of sex,

religion, race, color, and national origin. 42 U.S.C.

§ 2000e-2. The law’s broad remedial purpose is to

“eradicat[e] discrimination throughout the economy.”

Albemarle Paper Co. v. Moody, 422 U.S. 405, 421

(1975).

In June 1964, the Senate rejected an

amendment to Title VII that would have permitted an

employer to discriminate on the basis of race, color,

religion, sex, or national origin if the employer

believed such discrimination would serve the

business’s “good will.” 110 Cong. Rec. 13825-26

[3405617.1]

5

(1964). The amendment’s sponsor, Senator John

McClellan of Arkansas, objected to Title VII on the

grounds that it would “deny to the employer the right

to exercise his judgment in his own business affairs”

and would eliminate “the right of a person to be free

in the United States.” Id. at 13825. New Jersey

Senator Clifford Case responded that McClellan’s

proposed amendment would “destroy” Title VII, and

the Senate resoundingly rejected it by a vote of 61-30.

Id. at 13825-26.

Nevertheless, soon after Title VII was enacted,

employers sought to evade its broad sweep by

claiming that discrimination was necessary to satisfy

customers and thrive in the marketplace. Courts

correctly rejected these defenses, recognizing that

permitting employers to use customer biases as a

shield would be fundamentally at odds with Title

VII’s goal of overcoming societal biases.

Beginning in the 1970s, the airline industry

advanced this defense in support of its systemic

discriminatory hiring practices. In Diaz v. Pan

American World Airways, Inc., the plaintiff, a male

applicant for a flight attendant position, brought a

Title VII claim to challenge Pan American’s policy of

hiring only women as flight attendants. 442 F.2d 385,

389 (5th Cir. 1971). The airline attempted to justify

the discriminatory policy by citing customers’

preferences for female flight attendants.

Id.

Analyzing Title VII and its implementing regulations,

the Fifth Circuit concluded that acceding to customer

prejudices was not a valid reason to discriminate on

the basis of sex. Id.; 29 C.F.R. § 1604.2(a)(1)(iii)

(barring discrimination because of client or customer

[3405617.1]

6

preferences). Congress’ primary goals in passing the

Civil Rights Act included providing equal access to

the job market and promoting more efficient use of the

nation’s labor force. See Diaz, 442 F.2d at 386-87.

The court recognized that creating a customer-bias

exception to Title VII’s anti-discrimination mandate

would run contrary to Title VII because “it was, to a

large extent, these very prejudices the Act was meant

to overcome.” Id. at 389.

After Diaz, airlines continued to argue that

employment policies that discriminated on the basis

of sex were needed to appease customers’ biases. See,

e.g., Gerdom v. Cont’l Airlines, Inc., 692 F.2d 602, 609

(9th Cir. 1982) (weight restrictions applicable only to

female flight attendants); Sprogis v. United Airlines,

Inc., 444 F.2d 1194, 1199 (7th Cir. 1971) (prohibition

on married female flight attendants); Wilson v

Southwest Airlines Co., 517 F. Supp. 292, 302-03

(N.D. Tex. 1981) (ban on hiring male flight attendants

and ticketing agents). The courts repeatedly rejected

these arguments, recognizing that they threatened to

“swallow the rule” barring discrimination on the basis

of sex. Wilson, 517 F. Supp. at 304.

Defendants in other sectors of the economy

continued—unsuccessfully—to

assert

similarly

inappropriate defenses to Title VII sex discrimination

claims. See, e.g., Fernandez v. Wynn Oil Co., 653 F.2d

1273, 1276 (9th Cir. 1981) (refusal to promote female

to executive position at oil company); Olsen v.

Marriott Int’l, Inc., 75 F. Supp. 2d 1052, 1063-68 (D.

Ariz. 1999) (hotel refusal to hire male massage

therapist); E.E.O.C. v. HI 40 Corp., Inc., 953 F. Supp.

301, 305-06 (W.D. Mo. 1996) (weight loss centers’

[3405617.1]

7

refusal to hire men as counselors); Bollenbach v.

Monroe-Westbury Central School District, 659 F.

Supp. 1450, 1472 (S.D.N.Y. 1987) (school district’s

assignment of bus routes to drivers based on sex).

That defendants so frequently asserted customer-bias

defenses demonstrates that courts were rightly

concerned that such defenses would undermine Title

VII’s bar on sex discrimination.

B.

Customer-Preference Defenses to

Other Types of Employment Discrimination Claims Also Are Consistently Rejected.

Defendants likewise have unsuccessfully

asserted spurious customer-preference defenses to

Title VII claims based on racial and religious

discrimination. See, e.g., Bradley v. Pizzaco of

Nebraska, Inc., 7 F.3d 795, 799 (8th Cir. 1993)

(rejecting racially discriminatory grooming policy

premised on accommodating customer preferences);

Muhammad v. New York City Transit Auth., 52 F.

Supp. 3d 468, 487-88 (E.D.N.Y. 2014) (rejecting policy

of transferring Muslim bus operators who refused to

remove or cover Khimars (headscarves) to noncustomer contact position).

Similar defenses to claims under other

employment discrimination statutes have been

consistently rejected as well. See Chalk v. U.S. Dist.

Court Cent. Dist. of California, 840 F.2d 701, 711 (9th

Cir. 1988) (rejecting possibility of engendering fear in

students and teachers as basis for denying injunction

under Rehabilitation Act ordering school to return

teacher with AIDS to regular duties); Silver v. North

[3405617.1]

8

Shore Univ. Hospital, 490 F. Supp. 2d 354, 365

(S.D.N.Y. 2007) (rejecting perceived preference of

funders for younger researchers as basis for

discrimination in violation of Age Discrimination in

Employment Act); Sparenberg v. Eagle Alliance, No.

JFM–14–1667, 2015 WL 6122809, at *6 (D. Md. Oct.

15, 2015) (condemning transfer in violation of Family

Medical Leave Act based on client demand); Mass v.

McClenahan, 893 F. Supp. 225 (S.D.N.Y. 1995)

(rejecting defense to liability under 42 U.S.C. § 1981

premised on client concerns about retaining a “New

York Jew” as an attorney).

C.

Evidence of Acquiescence to Customer

Biases Has Been Recognized as

Proof of Intentional Discrimination

Under Comparable Civil Rights

Statutes.

Acceding to customer biases is itself unlawful

discrimination under prevailing interpretations of

comparable civil rights statutes.

Both the

Department of Justice and the Department of

Housing and Urban Development, for example,

interpret the Fair Housing Act, 42 U.S.C. § 3601 et

seq., to prohibit “practices or decisions that reflect

acquiescence to community bias[.]” Joint Statement

of the Department of Housing and Urban

Development and the Department of Justice, State

and Local Land Use Laws and Practices and the

Application of the Fair Housing Act 3 (Nov. 10, 2016),

http://www.justice.gov/crt/page/file/909956/download.

“[S]tate and local governments may not act because of

the fears, prejudices, stereotypes, or unsubstantiated

assumptions that community members may have

[3405617.1]

9

about current or prospective residents because of the

residents’ protected characteristics.” Id. at 5. Accord

MHANY Mgmt., Inc. v. County of Nassau, 819 F.3d

581, 605-06 (2d Cir. 2016) (affirming judgment for

plaintiffs premised on enactment of exclusionary

zoning ordinance in response to constituents’ “vocal

and racially influenced opposition” to proposed

housing development).

Evidence that a defendant acquiesced to

customer or constituent prejudice also can provide

affirmative proof of intentional discrimination under

Title IX, 20 U.S.C. § 1681(a). In Doe v. Columbia

University, 831 F.3d 46 (2d Cir. 2016), a private

university allegedly denied a male student accused of

sexual misconduct the resources it provided to his

female accuser, including support from a student

advocate

during

the

university’s

internal

investigation of the matter. The male student sued

the university for sex discrimination, claiming that

the university denied him these resources for the

purpose of appeasing student activists who had

denounced the university for “not being firm enough”

with male students. Id. at 50. The district court

dismissed the complaint after concluding that the

university’s alleged disparate treatment “could

equally have been—and more plausibly was—

prompted by lawful, independent goals.” Id. at 57.

The Second Circuit vacated the judgment, explaining

that the university’s alleged desire to appease its

critics was sufficient to infer discriminatory intent for

purposes of Title IX. Id. A university that “adopts,

even temporarily, a policy of bias favoring one sex

over the other in a disciplinary dispute, doing so in

[3405617.1]

10

order to avoid liability or bad publicity, has practiced

sex discrimination,” the court advised. Id. at 58 n.11.

II.

DISCRIMINATION TO APPEASE CUSTOMER PREJUDICE IS HARMFUL AND

SERVES NO LEGITIMATE PURPOSE.

A.

Allowing Employers to Accede to

Customers’ Discriminatory Preferences Is Counterproductive.

History shows that allowing employers to

accommodate customers’ biases by discriminating in

employment decisions is both unnecessary and short

sighted. During the early 1960s, as sit-ins and

boycotts pushed the desegregation of public

accommodations to the top of the congressional

agenda, many businessmen predicted disaster,

warning that integration would drive away the more

affluent white customers upon whom their businesses

depended. See Gavin Wright, SHARING THE PRIZE:

THE ECONOMICS OF THE CIVIL RIGHTS REVOLUTION IN

THE AMERICAN SOUTH 76-79 (2013). But resistance

from white customers proved far more limited than

many anticipated in the wake of the Civil Rights Act

of 1964. Sales increased significantly, and within

three years “the overwhelming majority of

establishments were committed to compliance.” Id. at

98.

This success resulted in large part from

Congress’s decision not to incorporate a customerpreference defense into Title II of the Civil Rights Act.

Earlier efforts at voluntary desegregation had mostly

failed, because even those businesses that were open

[3405617.1]

11

to the possibility of desegregation feared being placed

at a competitive disadvantage if they chose to

desegregate while their competitors did not. Id. at 9091. Had Congress included a customer-preference

defense in Title II, desegregation of public

accommodations likely would have proceeded with far

more disruption and far less success than it did.

In the employment discrimination context,

many businesses initially opposed Title VII. But

some presciently viewed Title VII as a “blessing in

disguise,” because the absence of a customer

preference defense assured them that they could

benefit from an expanded labor pool without being

undercut by competitors in the event of a customer

backlash. Id. at 109, 121-22

Airlines did not collapse because they were

forced to adopt non-discriminatory flight attendant

hiring practices. Southwest Airlines argued that

barring men from ticketing agent and flight attendant

positions was necessary to survive in a cutthroat

industry, but Southwest has been profitable every

year since it opened these positions to all qualified

applicants. Wilson, 517 F. Supp. at 294-96, 299;

Southwest Airlines Reports Fourth Quarter And

Annual Profit; 46th Consecutive Year Of Profitability,

Press Release (Jan. 24, 2019), http://investors.south

west.com/news-and-events/news-releases/2019/01-2

4-2019-113106440.

Similarly, United Airlines

remains one of the world’s largest airlines even after

it was forced to abandon its discriminatory flight

attendant hiring practices. Sprogis, 444 F.2d at 1199;

United Continental Holdings on the Forbes Global

2000 List, https://www.forbes.com/companies/united-

[3405617.1]

12

continental-holdings/#5520a823479a (last visited

June 28, 2019). In fact, research shows that more

diverse companies tend to perform better financially

than their competitors. Steven A. Ramirez, Diversity

and the Boardroom, 6 STAN. J. L. BUS. & FIN. 85, 99

(Fall 2000).

Hostility toward working with people of

different backgrounds tends to diminish with

experience and exposure over time. This is true as to

attitudes about LGBT people. Polling shows that

public attitudes toward LGBT people have become

increasingly positive over time as states have enacted

protections for LGBT people and courts have affirmed

their right to equal treatment. See Pew Research

Center, Attitudes on Same-Sex Marriage (May 14,

2019), https://www.pewforum.org/fact-sheet/changi

ng-attitudes-on-gay-marriage/. Empirical evidence

shows that legal protections for LGBT people are

correlated with higher rates of acceptance. Andrew

R. Flores and Scott Barclay, Backlash, Consensus,

Legitimacy, or Polarization: The Effect of Same-Sex

Marriage Policy on Mass Attitudes, 69 POL. RES. Q. 43,

44 (March 2016). Furthermore, research shows that

working with employees from different backgrounds

is one of the most effective ways to reduce prejudiced

attitudes. See Kathleen Hale, Toyota v. Williams:

Further Constricting the Circle of Difference, 4 J. L.

SOCIETY 275, 305 (Winter 2003).

Altitude Express and Funeral Homes’

professed concerns about customer preferences ignore

the obvious fact that many of the most successful

businesses in the country now bar discrimination

against LGBT employees. HUMAN RIGHTS CAMPAIGN,

[3405617.1]

13

CORPORATE EQUALITY INDEX 6 (2019), https://assets2.

hrc.org/files/assets/resources/CEI-2019-Full Report.

pdf?_ga=2.166794302.1835252856.1560803408-17

6337270.1560803408. Altitude Express and Funeral

Homes’ claims that they need to discriminate against

LGBT employees because they face competitive

pressure to do so are particularly inappropriate in

light of other companies’ successful implementation of

non-discrimination policies. See HI 40 Corp., 953 F.

Supp. at 304 (weight loss centers argued that

customer preferences justified bar on hiring male

counselors even where competitors did not

discriminate against men in hiring); Morris v.

Bianchini, No. 86–0742–A, 1987 WL 11822, at *7 n.3

(E.D. Va. Feb. 24, 1987) (athletic club refused to hire

women to cater to perceived customer preference but

competitors did not discriminate based on sex).

B.

Allowing Employers to Accede to

Customers’ Discriminatory

Preferences Would Marginalize

Title VII’s Prohibition of Sex

Discrimination and Perpetuate

Stereotypes.

Permitting employers to disregard federal antidiscrimination protections to pander to customers’

real or perceived prejudice against LGBT people

would marginalize those protections against sex

discrimination and undermine Title VII’s core purpose of promoting equal access to the job market. It

would enable employers to cherry-pick customer

complaints to shield themselves from liability and

conceal their own discriminatory intent in mistreating LGBT employees and job candidates.

[3405617.1]

14

In Ms. Stephens’ case, Funeral Homes concluded that she would distract customers from their

grieving without first providing Ms. Stephens the

opportunity to work with customers after she transitioned and without her supervisor even seeing

Ms. Stephens presenting as the woman she knows

herself to be. Funeral Homes, 884 F.3d at 586.

Funeral Homes’ professed concern that Ms. Stephens

would distract customers is just the latest in a long

line of unsuccessful defenses to discrimination suits

based on stereotypes. Ferrill v. Parker Group, Inc.,

168 F.3d 468, 474-75 (11th Cir. 1999) (telemarketing

firm’s race-based call assignments based on

stereotype that black voters would respond better to

black callers); Knight v. Nassau County Civil Serv.

Comm’n, 649 F.2d 157, 162 (2d Cir. 1981) (race-based

assignment of employee to minority recruitment

position based on stereotype that minorities would

respond better to black recruiter than white

recruiter).

Endorsing such defenses would

perpetuate stereotypes and enshrine them as

permanent exceptions to anti-discrimination laws.

That third-party preferences are often

misjudged further underscores the needless harm

that would result from permitting discrimination

based on perceived customer prejudices.

For

example, in Chalk, 840 F.2d at 711, the district court

declined to order the defendant, a school district, to

return the plaintiff, a teacher with AIDS, to the class

room because the court believed that doing so would

inflict fear and trauma on students and teachers.

Reversing the district court, the Ninth Circuit noted

that several of the parents had actually joined an

amicus brief in favor of reinstating the plaintiff to the

[3405617.1]

15

classroom, and that the plaintiff was greeted with

hugs and gifts when he returned to teaching. Id. at

711 n.14. It appears that the trauma the plaintiff

suffered when he was transferred away from the

classroom was real, but the trauma the transfer

supposedly avoided may not have been.

C.

Customer-Bias-Based Discrimination

Harms Everyone, Not Just Employees

and Job Applicants Who Face

Discrimination.

Sanctioning employer discrimination aimed at

appeasing customer prejudice prevents everyone from

benefiting from the talent that people protected by

anti-discrimination laws have to offer. In Chaney v.

Plainfield Healthcare Center, for example, racist

nursing home patients objected to receiving care from

black staff, so the nursing home barred the plaintiff,

a black nursing assistant, from assisting them. 612

F.3d 908, 913 (7th Cir. 2010). The nursing home’s

discriminatory practice risked violating its duty to

provide medical care and resulted in reduced

productivity, as the plaintiff devoted time to locating

white staff to assist racist patients and forced

patients to wait longer for care. Id. at 910. Both the

nursing home and its patients would have been better

off if the plaintiff had been allowed to do her job in a

non-discriminatory environment.

In Morris v. Bianchini, an athletic club

suffered a loss when, based on perceived

discriminatory customer preferences, it hired a male

athletics director instead of a “far better qualified”

and more experienced woman. Morris, 1987 WL

[3405617.1]

16

11822, at *7. The club fired their new hire just a few

months later after he failed to meet expectations,

forcing the club to devote additional time and effort to

search for another director. Id. at 3.

III.

THIS COURT HAS LONG DISFAVORED

THIRD-PARTY VETOES OF CIVIL RIGHTS

AND CIVIL LIBERTIES.

This Court has long held that the government

may not suppress constitutionally protected speech,

assembly, or religious exercise simply because it

elicits or is likely to elicit a hostile reaction from third

parties. In Hague v. C.I.O., for example, the City of

Jersey City denied labor organizers and their

sympathizers a permit for a public demonstration and

then summarily “deported” them from the City, citing

a series of municipal ordinances and threats of

violence that opponents of the organizers had made

during a counter-rally organized by the American

Legion. 101 F.2d 774 (3d Cir.), aff’d as modified, 307

U.S. 496 (1939). The organizers filed suit, the district

court enjoined the City’s enforcement of the

ordinances, and the Third Circuit and this Court each

affirmed the injunction with minor modifications. Id.

For rights to meaningfully exist, the Third Circuit

observed, they cannot be “place[d] . . . in the hands of

those who would destroy them.” Hague, 101 F.2d at

782. “If the ill-intentioned threaten riot, speech may

not be [h]ad. Under what conditions then would not

the cry of riot be raised?” Id.

Since Hague, this Court has repeatedly

confirmed that “[p]articipants in an orderly

demonstration in a public place are not chargeable

[3405617.1]

17

with the danger, unprovoked except by the fact of the

constitutionally protected demonstration itself, that

their critics might react with disorder or violence.”

Brown v. State of Louisiana, 383 U.S. 131, 133 n.1

(1966); see, e.g., Cantwell v. State of Connecticut, 310

U.S. 296 (1940); Edwards v. South Carolina, 372 U.S.

229 (1963); Coates v. City of Cincinnati, 402 U.S. 611

(1971); Forsyth County, Georgia v. Nationalist

Movement, 505 U.S. 123 (1992). Like the Congress

that enacted the Civil Rights Act of 1964, which

recognized that a customer-preference defense would

“destroy” Title VII, see 110 Cong. Rec. 13825 (1964),

this Court understands that a right whose exercise is

subject to a “heckler’s veto” is no right at all. Reno v.

Am. Civil Liberties Union, 521 U.S. 844, 880 (1997);

Zivotovsky ex rel. Zivotovsky v. Kerry, 135 S. Ct. 2076,

2115 (2015) (Roberts, C.J., dissenting).

This principle was crucial to the Court’s role in

desegregating public spaces.

Beginning with

Buchanan v. Warley, which held that a municipal

ordinance prohibiting racial integration of residential

neighborhoods was not justified merely because it

“promote[d] the public peace by preventing racial

conflicts,”

245 U.S. 60, 73 (1917), the Court

consistently rejected arguments from government

defendants who engaged in unconstitutional

discrimination to appease the prejudices of their

constituents. Wright v. State of Georgia, for example,

involved six black teenagers who had been convicted

of breaching the peace for playing basketball in a park

customarily used by white people. 373 U.S. 284

(1963).

Reversing the convictions, this Court

explained that “the possibility of disorder by others

cannot justify exclusion of persons from a place if they

[3405617.1]

18

otherwise have a constitutional right (founded upon

the Equal Protection Clause) to be present.” Id. at

293; see also Watson v. City of Memphis, 373 U.S. 526,

535 (1963) (public hostility not a reason to delay

desegregating

recreational

facilities

because

“constitutional rights may not be denied simply

because of hostility to their assertion or exercise.”).

An employer who allows the real or perceived

discriminatory preferences of his customers to control

his employment decisions is little different from a

public official who placates the discriminatory

preferences of his constituents. See Faragher v. City

of Boca Raton, 524 U.S. 775, 798 (1998) (supervisor

who “discriminate[s] racially in job assignments in

order to placate the prejudice pervasive in the labor

force” enforces a “heckler’s veto . . . intended to

further the employer’s interests by preserving peace

in the workplace”). Such a veto of LGBT people’s

rights could not survive constitutional scrutiny in a

Section 1983 suit asserting an equal protection claim.

Cf. Lawrence v. Texas, 539 U.S. 558 (2003); Romer v.

Evans, 517 U.S. 620 (1996). It should not survive

scrutiny in a suit brought under Title VII, either.

[3405617.1]

19

CONCLUSION

For the forgoing reasons, this Court should

affirm the judgments of the Second and Sixth Circuits

and reverse the judgment of the Eleventh Circuit.

Dated: July 1, 2019

Respectfully submitted,

SANFORD JAY ROSEN

Counsel of Record

MICHAEL S. NUNEZ

ROSEN BIEN GALVAN

& GRUNFELD LLP

101 Mission Street,

Sixth Floor

San Francisco, California

94105-1738

(415) 433-6830

srosen@rbgg.com

Counsel for Amici Curiae

National LGBT Bar

Association, National Trans

Bar Association, LGBT Bar

Association of Greater New

York, Bay Area Lawyers for

Individual Freedom, and

LGBT Bar Association of

Los Angeles

[3405617.1]

20

APPENDIX

The National LGBT Bar Association is a nonprofit membership-based 501(c)(6) professional

association. The National LGBT Bar Association’s

more than 10,000 members and subscribers include

lawyers, judges, legal academics, law students, and

affiliated legal organizations supportive of lesbian,

gay, bisexual, and transgender (“LGBT”) rights. The

National LGBT Bar Association and its members

work to promote equality for all people regardless of

sexual orientation or gender identity or expression,

and fight discrimination against LGBT people as legal

advocates. The National LGBT Bar Association is a

membership organization and files this brief on behalf

of its members, who object to workplace

discrimination on the bases of sexual orientation and

gender identity or expression.

The National Trans Bar Association (“NTBA”) is

a non-profit professional association of attorneys

promoting equality both in the legal profession and

under the law. In addition to directly working with

trans and gender non-conforming legal professionals,

the NTBA seeks to educate and advocate for

legislative changes that expand formal legal

protections and access to legal representation for

trans and gender non-conforming people.

The LGBT Bar Association of Greater New York

(“LeGaL”) was one of the nation’s first bar

associations of the LGBT legal community and

remains one of the largest and most active

organizations of its kind in the country. Serving the

New York metropolitan area, LeGaL is dedicated to

[3405617.1]

21

improving the administration of the law, ensuring full

equality for members of the LGBT community, and

promoting the expertise and advancement of LGBT

legal professionals.

LeGaL, whose membership

includes attorneys who regularly represent LGBT

employees in cases of employment discrimination, has

a fundamental interest in ensuring that Title VII’s

protections extend to all LGBT employees.

Bay Area Lawyers for Individual Freedom

(“BALIF”) is a bar association of approximately 500

lesbian, gay, bisexual, and transgender (“LGBT”)

members in the San Francisco Bay Area legal

community.

BALIF promotes the professional

interests and social justice goals of its members and

the legal interests of the LGBT community at large.

For nearly 40 years, BALIF has actively participated

in public policy debates concerning the rights of

LGBT people and has authored and joined amicus

efforts concerning matters of broad public

importance.

The LGBT Bar Association of Los Angeles was

founded in 1979 in response to Proposition 6, a ballot

initiative that would have prohibited homosexuals

from working as teachers in the state of California.

Today, the LGBT Bar Association of Los Angeles

advocates for the interests of lesbian, gay, bisexual,

transgender, and queer persons in the legal

profession and in the community at large, through

education, legal advocacy, and participation in

political and civic activities.

[3405617.1]